Funniest/Most Insightful Comments Of The Week At Techdirt

from the long-week dept

Jumping right into it. The comment voted most insightful by visitors to this site involved a comment on our post about the legal threat we received this week. Matt used that story to point out some issues with the legal system:

Good reason for judicial reform

We have a policy in the US that the courts should be open to everyone. This is a stupid policy. As good as it makes folks feel to say otherwise, the fact is that most lawsuits are little more than legalized extortion. The threat of them moreso. They cost too much to defend, so people settle rather than doing so.

To counteract this, we need a wave of judicial reform. First and foremost, we need to put more teeth into Rule 11 (the rule that provides that attorneys who sign pleadings that lack a good faith factual basis and legal foundation may themselves be sanctioned). It is seldom enforced, and not because pleadings are so well-founded.

Next, Rules 12 and 56 need to be implemented with some intellectual honesty. Complaints that are so implausible as to sound like fantasy should be dismissed immediately absent compelling evidence. The SCOTUS took a step in the right direction with Twombly and its progeny, but the lower courts have not yet pushed their newly reemphasized authority far enough.

Finally, plaintiffs should be made to post a bond equal to the likely defense cost of the case, and forfeit it if they lose. This probably will not result in denying access - even the very poor will likely be able to post the bond, provided they can convince an attorney or an insurer that their case is merited. But ridiculous plaintiffs will not be able to fund these sorts of serial lawsuits. (Note that sanctions alone will not ever do the trick - many strategic lawsuits are filed by impecunious "judgment-proof" plaintiffs.)

Here, however, there may be additional protection. Mr. Wolk is a member of the Pennsylvania bar. As such, he is sworn to follow its rules of professional conduct. That includes an obligation not to file unmeritorious claims, lie in communications to non-clients, say anything that he knows or should know will be publicized and could affect the outcome of litigation, make false claims about judges, request a party other than his client to refrain from giving information about a cause, etc. Rule 3.1 has been interpreted to mean that a lawyer may not threaten legal action. To all appearances, Mr. Wolk is an effective and experienced litigator, and I am sure that he knows and has internalized his professional obligations. But it looks to me like he is warming right up to the line with these throw-down challenges.

Coming in second was a comment from btr1701, responding to one commenter's legally-inept claim that Zediva lost its remote-DVDs case because even if it stayed within the letter of the law, it had "bad intentions." btr1701 explained that the law doesn't work that way:

You keep saying stuff like this, which indicates that you seem to have this odd idea that if someone follows the law they can still be found to have broken it based on a finding of 'bad intentions'.

Let's make this clear so that even you can understand it:

If someone follows the law, their intentions ARE IRRELEVANT.

As for editor's choice, once again, it was difficult to narrow them down, so we've got three. First up is another comment on the Zediva ruling, responding to the questions I asked in the post about "how can people respect a law that leads to such results?" and "how can anyone take copyright law seriously when it's interpreted this way?" Dave answered simply that people don't take it seriously:

How can people respect a law that leads to such results?

Answer is: they don't. No one respects copyright law. they either use it and twist it into a vague characature of itself to protect their rents, or like the pirates, ignore it completely because it doesn't make any damn sense.

Not even judges respect the law. Here we have a judge that doesn't like how creatively Zediva set up their model to be in compliance, so he twisted it back around and made stuff up. He doesn't like this loophole, so he rewrites copyright law to close it.

how can you take copyright law seriously when it's interpreted that way?

You can't. And no one does. Copyright is either something to ignore, or it's your hammer and the world is a nail

Next is a wonderful comment from an Anonymous Coward responding to our discussion about (in part) the COPPA law that makes it difficult for sites to offer services to children under 13. This AC pointed out that this overprotection of children has consequences:

The primary job of a child is to grow up. This foolish business of passing lots of laws "for the children" means that they are kept in cotton wool for too long. It makes them become lazy with a massive sense of entitlement. They get lazy because the information they are allowed to know is so trivial. They get entitled because the harsh realities of the world are deliberately withheld from them.

Then they turn eighteen and suddenly they are expected to "just know" all sorts of stuff which they have never before been given the opportunity to find out about. This foolish technique results in a lot of failures. Then the poor old taxpayer has to pick up the pieces, with higher costs for things like law enforcement, social welfare and health.

Kids are tough. Expose them to everything, especially knowledge of all the badness in the world. The function of a parent is to prevent them from getting damaged. Anything short of damage is fair game. Protecting them too much stops them from growing up, then they are in trouble once they turn eighteen. That is no way to raise children.

The last one is a comment from Derek Kerton in our discussion on how much Hollywood seems to be focused on remakes of some sort or another, He pointed out that we weren't saying this was a bad thing.. we just wanted Hollywood to be consistent:

I think the general consensus here is that remakes, prequels, TV-to-film, and sequels ARE creative works.

The may re-use known characters, common story lines, proven successes, but in any case, they are re-worked. New scripts are written, and the result is absolutely derivative and new.

Just as an example, people produce the plays of Shaw and Shakespeare all the time. They normally quote exactly the same script. The storyline is the same. Yet, despite this, every theater company, director, actor, stage designer, costumer designer, etc is taking some poetic license with their interpretation, and is adding their creativity on top of the base layer of Elizabethan quartets.

Art is derivative, has intrinsic value, and has no need to be wholly original. We know it. We just want Hollywood to admit it's true.

And now to the stuff you've been waiting for. The funny stuff. Here, the top rated comment went to another Anonymous Coward, responding to a regular critic's mocking of our post about Shagbook trying to invalidate Facebook's trademark by mockingly saying, "Yup, they "could" lose their trademark. They also "could" flap their arms and fly to the moon." The winning comment asked a simple question in response:

Wait, where is the lawsuit and related legal filing about Facebook flapping their arms and flying to the moon? I want to read that one.

Not surprisingly, the person he was responding to proceeded to miss the point of the comment, which actually made it even funnier.

Coming in second was johnjac, with an amusing comment responding to the Justice Department saying Homeland Security can search Bradley Manning's friend's laptop at the border because it wants to. johnjac translated that into preschool language:

"Your Honor, I'll like to reference the case of Your Mother v You, which clearly states that 'Because I said so' is a valid defense

Yeah, but this sort of thing only works previously really popular but mostly out of the public eye for the last 8 years pop punk bands

Then we have Noah McMurray's response to the story about Hollywood and remakes, claiming the answer is obvious:

Isn't it obvious? The studio's are forced to focus on remakes because copyright isn't yet strong enough to provide the necessary incentive for new/original works to be created. Once copyright laws are strengthened appropriately, we're sure to see a whole string of amazing new/original content come streaming out, right?

Re: Re: I was going to comment ....

loser pays legal system

I wanted to respond to this because there are downsides to the suggested "reforms".

A fixed rule requiring a bond means the poor will have little access to the courts. It is not a simple process to post a bond. For the most part, while there are insurance companies, they typically charge a fee AND require a cash collateral deposit equal to 100% of the undertaking. The only reason they exist is that the alternative - depositing the funds with the courts - is time consuming, absolutely locks up the money (and you don't earn any interest, and it takes forever to recover the funds.

Many good things have come from no-fee court access. Examples include overtime litigation, environmental litigation, civil rights litigation, etc. If the fear were that the plaintiff, if they lost, would stand for hundreds of thousands in legal fees, I doubt any of the above would have made it to the courthouse steps. So, let's not throw out the baby with the bathwater.

Assuming it would be enforced, we could require a "likelihood of success" hearing where the plaintiff would have to come forward with a detailed set of facts (not just boilerplate allegations). The facts could be those it knows or can show with reasonable prediction exist in the hands of the defendants. The defendants could respond with declarations setting forth their material facts or evidence disputing the likelihood of success. The sole function of the court would be to determine if the plaintiff's claim was in fact meritorious and had a likelihood of success. A decision in plaintiff's favor is no bond. A decision in the defendants' favor means a bond is required.

I live in Spain which (like most of Europe) has a loser pays system. The law allows the courts discretion in awarding the costs and typically they are 60% of what is sought. There seems to be a lower overall amount of litigation here. HOWEVER, there are rarely consumer actions against bad company practices - which therefor abound since the companies are not really under any threat to change.

Re: loser pays legal system

there's a solution to that last problem that is implemented in NZ.

i can't remember the details off the top of my head, annoyingly, but it basically amounts to most such bad practices triggering investigations and legal action where the plaintiff/prosecution is the government, for violating the various laws around such practice, not the individual in question. (this is, however, usually After a tribunal dealing with the specific case in question, as the event may be a one off screw up rather than anything else.)

there's more to it than this, of course. i just can't remember the details, as i said. it works pretty well though. (the legal system has all sorts of issues, but the low level tribunals all over the place where there is an arbitrator rather than a judge, who makes the outcome of such negotiations binding and has the ability to force an outcome if the parties cannot agree, and where failure to abide by the outcome lands you in court on charges over That rather than the original issue... it seems to help.)

Disagreeing with Matt

I second Paul Keating’s comments about the dangers of a strict loser pays system and of the proposed requirement that a plaintiff who wants to pay has to post a bond for the defendant’s cost, but in my own view Matt’s comments suffer from deeper flaws.

First, the policy that courts should be open to everyone, which Matt regards as a “stupid policy,” actually has its origins in the petition clause of the First Amendment, which entitles all Americans to “petition . . . for a redress of grievances.” And it would be great if Matt would share the source of the data that support his assertion that “most lawsuits are little more than legalized extortion.”

Second, Matt’s arguments about how Rule 11 should be applied to sanction plaintiffs and lawyers, and how Rules 12 and 56 should be applied to dispose of lawsuits early, have no relation to the lawsuit that Mike criticized in his post, or that I myself have been sued for criticizing. Those are part of the Federal Rules of Civil Procedure, but both the suit that Mike and I have criticized Wolk for filing, and the lawsuit that was later filed against me, were filed in a state court to which the Federal Rules have no application. Moreover, Rule 11 is still enforced in appropriate circumstances, and Rules 12 and 56 are the mechanism by which many suits are dismissed (or decided in the plaintiff’s favor) at early stages. Indeed, data from the Administrative Office of US Court suggests that most cases are still being resolved well before trial, in most cases by a judicial action of some kind. (The annual statistical reports can be found at http://www.uscourts.gov/Statistics/JudicialBusiness.aspx)

Finally, I disagree with Matt’s suggestions about the possible application of Pennsylvania’s disciplinary rules to Wolk's lawsuits and to Wolk's warnings about litigation. It is not a violation of a lawyer’s obligations to threaten legal action, and in fact it is probably better that parties discuss possible litigation before it is filed so that they can work out their differences without having to sue and defend. In a number of respects, Matt has taken some aspects of the rules that he cites out of context. For example, under Rule 3.6, it is not any public statement about a case that is prohibited, but only statements that "will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter" -- most commonly, by polluting the jury. But nothing Wolk has threatened to file against me, against Techdirt, or against blawger Scott Greenfield http://blog.simplejustice.us/2011/07/30/why-lawyers-cant-control-the-web.aspx#comment-11247452, is likely to get even close to a jury trial.

Moreover, lawyers have First Amendment rights just like everybody else, and if they think somebody has done something wrong, the First Amendment protects their right to say so. That is especially true about the criticism of judges and their decisions. After all, a judge is a public official – and in the federal system, a judge is not only a public official but a public official with a lifetime appointment. They are not entitled to a legal shield against being criticized. And again the same First Amendment that Techdirt or I would assert as a defense to a libel suit if Wolk sues us also protects Wolk against being disciplined by the Pennsylvania bar.

Finally, just as I have argued that a libel suit against the defendants and lawyers who beat Wolk in his original libel suit is the last place where the propriety or impropriety of the judge’s decisions or the defense lawyers’ actions ought to be debated and decided, http://volokh.com/2011/08/03/do-changes-to-a-blog-posts-url-and-the-sites-metatags-restart-the-statu te-of-limitations/comment-page-1/#comment-1250369, I don’t see a bar disciplinary proceeding as a satisfactory forum for deciding whether Wolk’s current lawsuits or threatened future lawsuits have merit. Wolk recently dismissed the Philadelphia Court of Common Pleas lawsuit against me and the other defendants. If he decides to tempt fate by refiling it, so far as I am concerned it ought to be up to the judges to whom that suit is assigned first to decide whether it has merit. If, as I believe likely, the suit is dismissed for lack of merit, the judge will then be able to decide whether to assess fees or other sanctions. Another possibility is the issuance of a vexatious litigation injunction, a tool commonly employed against pro se litigants who simply cannot take a judicial no for an answer. But it makes the most sense to have such decisions made by the judge who has had to address the suit on the merits, not by some separate legal authority.

Over the years, I have had clients who, after the suits against them based on their online speech were dismissed, were determined to file bar charges against the lawyers on the other side. I have yet to see such a charge succeed. As I see it, they are largely a waste of time.

Re: loser pays legal system

So basically your idea is to add another step in the form of an extra trial. That would be Waaayyyy cheaper, c'mon man, three paragraphs and you basically said nothing that made any sense or was even remotely relevant.

Re: Loser Pays

Strict loser pay rules are bad and will significantly reduce access to the courts.

For those of you that are getting hit with frivolous suits based upon your online statements, you might want to take a page from Democratic Underground's defense against Righthaven, which is to counterclaim for the frivolousness.

That way the plaintiff can't voluntarily dismiss their suit and then threaten to refile again, thus chilling speech.

Most state rules of procedure are similar to the Federal rules allowing for sanctions against both the plaintiff and its attorney. Pennsylvania's rule is 1023.1-1023.4